How does the I-539 application affect an EB-5 application?

I have a valid L-1 visa with due date Jan 4, 2014, but I resigned from my company in early October of this year. On Oct 4, a lawyer entered an I-539 application to USCIS on my behalf to change my status to B2 and extend my stay until Mar 31, 2014. On Oct 15, 2013, we received the receipt for that filing. It does not seem to be the best alternative for us at this point. Would it be easier to change my I-539 application to request a green card or apply for an I-526 by using most of my savings and 401K funds? Which method to stay in the United States would be more cost effective and have a higher likelihood of success?

Answers

Remaining in the country may not be possible. It is taking approximately 12-18 months to adjudicate an I-526 petition, which could exceed the stay time granted. This is a time sensitive matter. Please consult an immigration attorney to determine if there is a way for you to legally remain in the United States until your case is adjudicated.

Philip H Teplen

Immigration Attorney

Answered onDecember 16, 2013

Clearly, the I-539 is only a temporary measure. However, if you want to stay here, immediate action is advised as applications take time. I will be happy to consult and can be reached.

If you want to stay in the United States permanently, then the EB-5 route could work for you. If you plan on returning to your home country instead, then perhaps an E-2 would be better than a B. Either way, discussing your options and goals with qualified immigration attorneys would be beneficial to you.

The advice of an experienced EB-5 and immigration attorney is essential. The timing of the filing of non- immigrant and EB-5 filings is important when you are planning on adjusting in the United States. It seems that the facts of your case may require you to first apply for a visa at the U.S. consulate outside the United States.

I am sorry to say there is no easy or fast way for you to stay past March or June 2014, even if you get that I-539 to B-1/B-2 approved, as you have not applied for any petition on I-526 or any other immigrant petition as yet. Everything you could do to get a green card, including EB-5 (I-526) process, takes more than a year and a half and now that you have resigned from L-1 employment, you cannot stay that long on any other temporary visa status like B-1/B-2, which is designed for quick visit of no more than 6 months. If you wish to take the steps to become a permanent resident, then I would suggest that you consult an experienced immigration attorney to discuss various option and start the process over again.

Your I-539 cannot be changed to request a green card. The I-539 is only for changing certain types of nonimmigrant status. Even if you made a qualifying investment and filed an I-526 immigrant petition, that does not give you the right to remain in the United States while the I-526 petition is pending. Also, it is unlikely that your I-526 petition would be adjudicated and approved before your nonimmigrant status expires. There may be other alternatives for you, but you should consult with an experienced immigration attorney to advise you on this matter.

You can certainly submit an I-526, assuming you qualify, but the filing of the I-526 petition will not give you an immediate permission to remain in the United States. The petition must first be approved (which is likely to take close to a year) before you can file an application to adjust your status to permanent residence. So you need to figure out another way to remain in the United States beyond March 31 (e.g., F-1 or some other non-immigrant status) unless you''re ready to leave the United States by then.

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